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What’s Fair?

Here’s yet another discussion-with-lawyers about fair use as it applies to blogging and other forms of web publishing.

Some traditional media companies (the AP, for example) are not happy with sites using even small pieces of their content, probably because the link back doesn’t produce much if any profits.

And the fact they generally have a bigger legal team than the rest of us means that, even if they’re wrong, they have the muscle to intimidate a settlement in their favor.

Probably the biggest problem with trying to determine what’s “fair use”, especially for those of us in education, is that the concept is very vaguely defined in American law.

At the risk of making someone at the Times legal department upset, here’s a clip from their article that hits right at what needs to be done.

Courts have not provided much of an answer. In the United States, the copyright law provides a four-point definition of fair use, which takes into consideration the purpose (commercial vs. educational) and the substantiality of the excerpt.

But editors in search of a legal word limit are sorely disappointed. Even before the Internet, lawyers lamented that the fair use factors “didn’t map well onto real life,” said Mr. Ardia, whose Citizen Media Law Project is part of the Berkman Center at Harvard Law School. “New modes of creation, reuse, mixing and mash-ups made possible by digital technologies and the Internet have made it even more clear that Congress’s attempt to define fair use is woefully inadequate.”

Almost the entire intellectual property system in the US needs a major overhaul.

However, one of the first topics Congress needs to address is writing a fair, balanced, and specific definition of fair use into law.

Cory Doctorow explains much better than I can why all of this is important, not just to avoid being sued, but for sustaining a vibrant and growing culture.

1 Comment

  1. Dave

    I could not disagree more! Fair use is pretty brilliant in that it takes a concept that was basically undefined and created a four-point test that is understandable by just about anyone.

    To further specify anything as OK/not OK has the potential to greatly infringe on the rights of both creators and users.

    For example, if we impose a 100-word limit, then we’ve effectively destroyed the value of short works: poems, summaries, anything succinct. At the exact same time, you can no longer quote a full page from a 2000 page book, even though that one page would not likely affect the value of the larger work (in fact, sharing one page may have increased demand for the entire book).

    Yes, Fair Use is hard, but that doesn’t mean we should destroy something that works. Can we throw away guitars now that there is Guitar Hero? There is room for both…it turns out that is true for fair use, as well. Licenses like Creative Commons and GNU along with agreements from book publishers help to put some more basic guidelines in place for anyone looking for an easier way, but fair use is always there to guarantee a minimum standard of rights for BOTH creators and users.

    I skimmed Cory’s and saw that he said that “sharing on the Internet is the same as copying”. I think that might be one place where his argument breaks down. You -can- share. You can talk about it, you can critique it, you can tell people to buy it or not buy it. But you can’t record a whole movie and “share” it. He’s gotten lost in the semantics and ended up with the argument “everyone’s copying, so it shouldn’t be illegal.”

    I will be the first to tell you that if I download a movie or CD, chances are I wasn’t going to buy it anyway. If I use something, purchased or not, in a mash-up and share it online, it’s probably not going to make a difference in Billboard numbers. The actual, measurable exchange of dollars will not be affected in any way. That doesn’t make it right, and there is a psychological devaluation of the original work that occurs when we feel safe with abusing its privileges. And we could probably debate for years about whether that devaluation matches the increased value from being able to share more openly. But that decision will and should lie with the content creator — the creator has the right to first sale, and to what distribution methods they want to allow. Even if the creator could make more money with a certain method, or if really really really -should- allow people to copy, it is the content creator’s choice. If I disagree, I go somewhere else, or I make my own, or I give up.

    That’s where this argument loses most people: they don’t respect the rights of the content creator enough to give up if the creator doesn’t want to give permission (and fair use doesn’t apply). As a young person, I find that that entitlement usually comes from us: we have to give up sooner because we have less resources to draw on (we can’t pay as much for rights or afford to develop an alternate work) and we haven’t created something of such value that we felt a need to be protected.

    Sorry for the rambling, but…Fair Use is really, really, really, amazing. Not easy, and not giving you a free lunch, but amazing.

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